The NRA files a brief in the U.S.
Supreme Court case of McDonald v. Chicago, making a powerful
argument in defense of the Second Amendment.

Later this year, the U.S. Supreme
Court will decide whether the Second Amendment applies to state and
local governments. NRA members can be proud of the fine brief filed on
their behalf by a team of attorneys led by Stephen D. Poss and Stephen
Halbrook.

Before getting into the brief, let's
look at some background. In June 2008, the Supreme Court decided District of Columbia v. Heller, ruling that the Second Amendment
applies to "the people," not just the militia; therefore, the
Washington, D.C. handgun ban was ruled unconstitutional.

The D.C. Council is, in effect, an
arm of the federal government, because all of the Council's powers are
mere delegations of Congress' total power to govern the nation's
capital. Thus, the Supreme Court in D.C. v. Heller did not decide
whether the Second Amendment applies to state or local governments.

In the 1833 case Barron v.
Baltimore, the Supreme Court ruled the Bill of Rights only limits
the federal government. After the Civil War, Congress passed and the
states ratified the 14th Amendment, which was intended to make the Bill
of Rights apply to the states. Congress was especially determined to
make states obey the Second Amendment because Congress was outraged the
Southern states had enacted "black codes," which forbade freedmen from
possessing arms.

Two provisions of the 14th Amendment
addressed the problem. One says, "No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States."

Unfortunately, the Supreme Court
quickly nullified the Privileges or Immunities clause in the Slaughter-House Cases(1873) and United States v. Cruikshank(1876).

The second clause in the 14th
Amendment mandates: "nor shall any State deprive any person of life,
liberty, or property, without due process of law." The principle of "due
process of law," as understood by the framers of the 14th Amendment and
by Americans all the way back to James Madison, included some
substantive limitations on government power.

For example, if a government passed a
law that said, "All people with last names beginning with 'A' or 'B'
must pay $500 each to the government, and the money will be
redistributed to persons whose last names begin with 'X,' 'Y' or 'Z,'"
that law would be a violation of the Due Process clause.

Even if the law had been passed with
proper procedures--such as a recorded vote by the legislature following a
public hearing--the law would be void because it would be beyond the
legitimate powers of government.

Starting in 1895, the Supreme Court
began to use the 14th Amendment's Due Process clause to make some
provisions of the Bill of Rights enforceable against state governments.
Because local governments derive power from the states, a constitutional
restriction on state governments automatically applies to local
governments also.

Under the Supreme Court's doctrine of
"selective incorporation," the court chooses which parts of the Bill of
Rights will be applied to the states. For example, the Eighth
Amendment's prohibition on "cruel and unusual punishment" has been
incorporated, but not the amendment's ban on excessive fines.

Immediately after Heller was
decided, the NRA filed a lawsuit, NRA v. City of Chicago,
challenging Chicago's handgun ban.

The winning attorney in Heller,
Alan Gura, filed a separate case on the same issue, McDonald v.
Chicago. The federal Seventh Circuit Court of Appeals consolidated
the two cases and ruled in favor of the handgun ban last June (See "U.S.
Supreme Court Revisits the Second Amendment," Dec. 2009).

Then in September, the Supreme Court
announced it would hear the McDonald case.

The Supreme Court said the attorneys
should present arguments on whether the handgun ban should be considered
unconstitutional under the Privileges or Immunities clause or under the Due Process clause.

Because the NRA had been a party in
the consolidated case in the Seventh Circuit, the NRA was included in
the Supreme Court case as a party. Formally, the NRA is a "Respondent in
Support of Petitioner."

As a party challenging the handgun
ban, the NRA filed its brief on Nov. 16. In early 2010, the NRA will
file a reply brief that will respond to arguments raised by Chicago.
The January 2010 NRA brief will also respond to arguments in amicus curiae(non-party) briefs filed in support of Chicago.

The NRA brief, however, concentrates
on Due Process and is the product of an extremely strong legal team.
Lead counsel Stephen D. Poss is a senior partner at the corporate law
firm Goodwin Procter LLP, and is co-chair of the firm's national
Securities Litigation Practice.

Several other Goodwin Procter lawyers
volunteered to help on the brief, including partner Kevin Martin and
associate Joshua Lipshutz, both of whom have served as clerks for
Supreme Court Justice Antonin Scalia (the author of the Heller decision).

All the Goodwin Procter lawyers
contributed their services pro bono, meaning that they worked
free of charge as public service volunteer work in a major civil rights
case. Poss and his Goodwin Procter colleagues previously did pro bono
work in writing the amicus briefs for the NRA Firearms Civil
Rights Defense Fund in Heller, and in New York v. Beretta,
Mayor Bloomberg's abusive lawsuit against firearm manufacturers.

Of course, NRA lawyers also
participated in the McDonald brief. Poss explained NRA General
Counsel Robert Dowlut and NRA-ILA General Counsel and Deputy Executive
Director David Lehman "... played key roles assisting the briefing team
with edits and ideas. David Lehman's first child was born while we were
working on the brief and he e-mailed us from the hospital!"

Indispensable to the brief was
Stephen Halbrook, who led the NRA case in the federal district court and
court of appeals, and who is the world's leading scholar on
congressional protection of the right to arms during Reconstruction.

Poss recounted, "one of the special
pleasures" of working on the brief "was the opportunity to collaborate
with Steve Halbrook." Much of the brief summarizes what Poss calls
Halbrook's "extensive research and writings on the primary importance of
the Second Amendment to the framers of the 14th Amendment, who were
concerned about stopping the disarming and terrorizing of newly freed
slaves in the Reconstruction South following the Civil War."

Part I of the NRA brief begins,
accurately: "More evidence exists that the Right to Keep and Bear Arms
referenced in the Second Amendment was intended and commonly understood
to be protected by the 14th Amendment than exists for any other element
of the Bill of Rights."

Providing all this evidence would
fill a book--and has already. Namely, Stephen Halbrook's Freedmen, the
14th Amendment, and the Right to Bear Arms, 1866–1876(Praeger,
1998). The brief, with a 15,000-word limit, cannot recapitulate all of
this evidence, but it does present the key facts.

Shortly after the Civil War, Southern
states enacted the infamous "black codes," designed to keep the former
slaves in a condition of subjugation. For example, a Mississippi law
stated: "That no freedman, free negro or mulatto ... not licensed so to do
by the board of police of his or her county, shall keep or carry
fire-arms of any kind ..."

In response, the same Congress that
passed the 14th Amendment passed the Freedmen's Bureau Bill. That bill
provided that in all states that had not been re-admitted to the Union,
the "right ... to have full and equal benefit of all laws and proceedings
concerning personal liberty, personal security and the acquisition,
enjoyment and disposition of estate, real and personal, including the
constitutional right to bear arms, shall be secured to and enjoyed by
all the citizens of such State or district without respect to race or
color or previous condition of slavery."

Congress was aware of the continuing
abuses of civil rights, thanks to reports such as the one written by
General Ulysses Grant, who reported to Congress the Mississippi law
prohibiting blacks "from bearing arms, without a special license, is
unjust, oppressive and unconstitutional."

Grant, of course, would be elected
president of the United States in 1868, and re-elected in 1872. In his
two terms, he used federal power to enforce civil rights more vigorously
than any president before, or any president for nearly a century
afterward. After serving as U.S. president, Grant then served as
president of the National Rifle Association, our nation's leading civil
rights organization.

As Poss and Halbrook show, the 14th
Amendment was understood by the Congress that passed it, and the states
that ratified it, as protecting the Bill of Rights, including the Second
Amendment.

After the 14th Amendment became the
law of the land, Congress used its enforcement powers, granted by
section 5 of the amendment, to further protect the right to arms.

The Enforcement Act of 1870 made it a
federal felony for persons to conspire to injure someone in order to
prevent him from exercising "any right or privilege granted or secured
to him by the Constitution or laws of the United States."

When the Enforcement Act was being
passed, Sen. John Pool, R-N.C., pointed out how the Ku Klux Klan would
"order the colored men to give up their arms; saying that everybody
would be Kukluxed [murdered] in whose house fire-arms were found ..."
Likewise, Sen. John Thayer, R-Neb., stated: "The rights of citizenship,
of self-defense, of life itself were denied to the colored race. ..."

Soon after, Congress enacted the
Civil Rights Act of 1871, which provided civil liability for anyone who,
acting under color of law (that is, with government authority), deprived
anyone of "any rights, privileges or immunities secured by the
Constitution of the United States."

Again, congressional intent to
protect Second Amendment rights was plain. Rep. Henry Dawes, R-Mass.,
said every citizen "has secured to him the Right to Keep and Bear Arms
in his defense," and the purpose of the Civil Rights Act was to "secure
to him in these rights, privileges and immunities."

Part II of the NRA brief addresses
the Supreme Court's precedents for selective incorporation of the Bill
of Rights via the Due Process clause. As Poss and Halbrook summarize,
the Supreme Court's incorporation cases have used terms such as
"liberty," "a free society," "free government," the "liberty ... at the
base of all our civil and political institutions" and "ordered liberty."
Repeatedly the Supreme Court has asked whether a particular right is an
essential part of "our" American system of liberty.

The Second Amendment easily passes
those tests. To begin with, the very text of the Second Amendment
declares that it protects something that is requisite to a free society.
That is, "necessary to the security of a free State."

In addition, the Heller decision itself quoted sources that affirmed the right to arms and to
self-defense are "fundamental." Among them was St. George Tucker, the
leading legal scholar of the early republic, who wrote the Second
Amendment is "the true palladium of liberty" and "the right to
self-defense is the first law of nature."

The Supreme Court has often looked to
state practices to decide which rights are embedded in our American
bedrock of liberty. Again, the evidence for incorporation is
overpowering--44 state constitutions protect the right to arms.

The right to arms is the very reason
why the government of the United States exists. As the NRA brief
explains, "This case is before the Supreme Court of the United States of
America precisely because Redcoats marched on Concord in April of 1775
to seize weapons and gunpowder, and were met by colonists jealous of
their right to keep and bear arms who fired the first shots of the War
of Independence."

British General Thomas Gage's
subsequent confiscation of arms from the people of Boston "would be
among the grievances detailed in the Declaration of Causes of Taking Up
Arms of July 6, 1775."

From that April morning in 1775, to
the frontier of the growing nation, to the present, the right to arms
has always been at the center of our liberty. Thus, "In comparison to
the Right to Keep and Bear Arms, no right has deeper roots in our
history, no right is more essential to the preservation of all rights
and no right has a stronger claim to fundamental status."

Part III of the brief is shorter and
shifts the argument from the Due Process clause to the Privileges or
Immunities clause. The brief suggests the Supreme Court's three 19thcentury decisions in which it rejected Second Amendment arguments are
all distinguishable: United States v. Cruikshank(which was
brought under the Enforcement Act of 1870) involved misconduct by
private citizens, not by a government; Presser v. Illinois(1886)
simply held that holding a mass armed parade without a permit is not
part of the Second Amendment right; and Miller v. Texas(1895)
rejected the defendant's Second Amendment claim on appeal because he had
not raised the issue in the trial court.

Accordingly, argues the NRA brief,
the Supreme Court does not need to overrule any precedent in order to
make the Second Amendment applicable to the states via the Privileges or
Immunities clause.

Finally, Part IV briefly addresses
and supports the main argument in the Gura brief: the Slaughter-House Cases
should be overruled and the Supreme Court should make a fresh
start on Privileges or Immunities jurisprudence. That would be a
perfectly good result, but whether five justices of the Supreme Court
are willing to go that far remains to be seen.

Poss explained the strategic choices:

"The NRA brief is aimed purely at the
singular goal of incorporating the Second Amendment so as to provide
nationwide protection of Second Amendment rights," he said. "Thus we
provided the Supreme Court with a menu of arguments demonstrating that
the court does not need to overrule or reverse any precedent in order to
incorporate the Second Amendment under the Due Process Clause and also
showing an alternative route to incorporation via the Privileges and
Immunities Clause of the 14th Amendment.

"I am immensely proud of the combined
work of our team on this brief."

As an NRA member, you should be, too.
Your association began fighting for civil rights in 1871 and it is
continuing that fight in the 21stcentury with superb legal work worthy of the immense issues at stake.

Dave Kopel is
a constitutional scholar and frequent America's 1st Freedom contributor. His newest book is Aiming for Liberty: The Past,
Present and Future of Freedom and Self-Defense.

Make a donation to support Dave Kopel's work in defense of constitutional
rights and public safety.

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